English Version ITLOS/PV.07/5

INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA TRIBUNAL INTERNATIONAL DU DROIT DE LA MER

2007

Public sitting

held on Saturday, 21 July 2007, at 3.00 p.m.,

at the International Tribunal for the Law of the Sea, Hamburg,

President Rüdiger Wolfrum presiding

THE “TOMIMARU” CASE

(Application for prompt release)

(Japan v. Russian Federation)

Verbatim Record

Uncorrected Non-corrigé

Present: President Rüdiger Wolfrum

Vice-President Joseph Akl

Judges Hugo Caminos

Vicente Marotta Rangel

Alexander Yankov

Anatoli Lazarevich Kolodkin

Choon-Ho Park

Paul Bamela Engo

L. Dolliver M. Nelson

P. Chandrasekhara Rao

Tullio Treves

Tafsir Malick Ndiaye

José Luis Jesus

Jean-Pierre Cot

Anthony Amos Lucky

Stanislaw Pawlak

Shunji Yanai

Helmut Türk

James L. Kateka

Albert J. Hoffmann

Registrar Philippe Gautier

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Japan is represented by:

Mr Ichiro Komatsu, Director-General, International Legal Affairs Bureau, Ministry of Foreign Affairs,

as Agent;

Mr Tadakatsu Ishihara, Consul-General of Japan, Hamburg, Germany, as Co-Agent;

and Mr Yasushi Masaki, Director, International Legal Affairs Division, Ministry of

Foreign Affairs, Mr Kazuhiko Nakamura, Principal Deputy Director, Russian Division, Ministry

of Foreign Affairs, Mr Ryuji Baba, Deputy Director, Ocean Division, Ministry of Foreign Affairs, Mr Junichi Hosono, Official, International Legal Affairs Division, Ministry of

Foreign Affairs, Mr Toshihisa Kato, Official, Russian Division, Ministry of Foreign Affairs, Ms Junko Iwaishi, Official, International Legal Affairs Division, Ministry of

Foreign Affairs, Mr Hiroaki Hasegawa, Director, International Affairs Division, Resources

Management Department, Fisheries Agency of Japan, Mr Hiromi Isa, Deputy Director, Far Seas Fisheries Division, Resources

Management Department, Fisheries Agency of Japan, Mr Tomoaki Kammuri, Fisheries Inspector, International Affairs Division,

Resources Management Department, Fisheries Agency of Japan, as Counsel; Mr Vaughan Lowe, Professor of International Law, Oxford University, United

Kingdom, Mr Shotaro Hamamoto, Professor of International Law, Kobe University,

Kobe, Japan,

as Advocates. The Russian Federation is represented by:

Mr Evgeny Zagaynov, Deputy Director, Legal Department, Ministry of Foreign

Affairs, as Agent;

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Mr Sergey Ganzha, Consul-General, Consulate-General of the Russian

Federation, Hamburg, Germany,

as Co-Agent;

Mr Alexey Monakhov, Head of Inspection, State Sea Inspection, Northeast

Coast Guard Directorate, Federal Security Service, and Mr Vadim Yalovitskiy, Head

of Division, International Department, Office of the Prosecutor General,

as Deputy Agents; and Mr Vladimir Golitsyn, Professor of International Law, State University of Foreign Relations, Moscow,

Mr Alexey Dronov, Head of Division, Legal Department, Ministry of Foreign Affairs,

Mr Vasiliy Titushkin, Senior Counselor, Embassy of the Russian Federation in

the Netherlands, Mr Andrey Fabrichnikov, Senior Counselor, First Asian Department, Ministry

of Foreign Affairs,

Mr Oleg Khomich, Senior Military Prosecutor, Office of the Prosecutor General;

as Counsel; Mrs. Svetlana Shatalova, Attache, Legal Department, Ministry of Foreign

Affairs, and Ms. Diana Taratukhina, Desk Officer, Legal Department, Ministry of Foreign Affairs;

as Advisers.

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THE PRESIDENT: Good afternoon. We will resume the oral proceedings. Before giving the floor to the Agent of the Respondent, I first call the interpreters who will interpret the statement from Vadim Yalovitskiy from Russian into one of the official languages of the Tribunal to make the declaration set out in Article 85 paragraph 4 of the Rules of the Tribunal.

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MR LAKEEV: Mr President, I, Vladimir Lakeev, solemnly declare upon my honour and conscience that my interpretation will be faithful and complete. MS EVEROVSKAYA: Mr President, I, Violetta Everovskaya, solemnly declare upon my honour and conscience that my interpretation will be faithful and complete. THE PRESIDENT: Could you kindly walk up to the booth, but take your time. May I now call upon Mr Zagaynov, Agent for the Government of the Russian Federation, to take the floor. Mr Zagaynov will then be followed by Vadim Yalovitskiy and he will be followed by Professor Golitsyn. MR ZAGAYNOV: Thank you, Mr President. Mr President, distinguished members of the Tribunal, honourable representatives of Japan, it is a great honour and privilege for me to act as an Agent for the Russian Federation in this case. This time the honourable judges have to consider the soundness of the Application of Japan concerning prompt release of the Japanese vessel Tomimaru, which was arrested in the Russian Exclusive Economic Zone on 1 November 2006 together with two other Japanese fishing vessels As was agreed during our consultations, for the sake of saving time, I will briefly enumerate the points developed in the presentations of the Russian Federation in the Hoshinmaru case that we consider relevant in the present case. In particular, these are our comments on the rights and obligations of a coastal state to protect marine living resources in its Exclusive Economic Zone, on the problem of illegal, unreported and unregulated fishing, on the general framework of the relations between Russia and Japan in the field of fisheries and, finally, on the issue of state responsibility, which in our opinion goes beyond the scope of the prompt-release procedure under Article 292 of the UN Convention on the Law of the Sea. Mr President, distinguished members of the Tribunal, when a provision of an international treaty is formulated so concisely as is the case with paragraph 2 of Article 73 of the 1982 Convention, a judicial organ applying it for the settlement of inter-state disputes has to work out its own interpretation of the text. In regard to the prompt-release procedure, this venerable Tribunal has already elaborated sufficiently detailed and consistent case law. We believe that the present case will be a very important step in its further development. In our view, your decision on it will have far-reaching consequences for the jurisprudence of the Tribunal. Of course, first and foremost I mean the issue of admissibility, for in this case the Tribunal has to examine an Application concerning a vessel on which a decision on merits has already been taken by a competent national court of the coastal state and, what is more, this decision on merits has already been executed.

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The question of the effects that a confiscation pronounced by a competent court of the coastal state may have on the jurisdiction of the Tribunal and admissibility of an Application filed under Article 292 of the Convention has already been raised before the Tribunal, in particular, in proceedings concerning the Grand Prince case brought by Belize against France and in the Juno Trader case between Saint-Vincent and the Grenadines and Guinea-Bissau. In the first case, nonetheless, the Tribunal did not have to take a stance vis-à-vis this important question, because in the light of the deregistration of the Grand Prince and on the basis of an overall assessment of the material placed before it, the Tribunal concluded that the documentary evidence submitted by the Applicant failed to establish that Belize was the flag state of the vessel when the Application was made. In the Juno Trader case the Tribunal did have jurisdiction to consider the Application of Saint-Vincent and the Grenadines. The particular circumstances of that case, however, were very different from the circumstances of the present one. First of all, the decision on the confiscation of the vessel Juno Trader was taken by an administrative body, the Inter-Ministerial Maritime Control Commission of Guinea-Bissau. Second, this administrative decision was afterwards suspended by a decision of a competent national court. This time the Tribunal has to examine the question whether it is appropriate for it to decide on the prompt release of a vessel which has been confiscated in accordance with due international procedure and has already been transferred into the property of the coastal state. According to paragraph 3 Article 292 of the UN Convention on the Law of the Sea, the Tribunal examining applications for release “shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against vessel, its owner or its crew.” It is obvious, therefore, that once the case had already been considered before the appropriate domestic forum on the merits, the decision rendered had already entered into legal force, and moreover executed, there is no more sense for the Tribunal to examine an application for the prompt release. It must be noted in this connection that in its Application Japan has anticipated the eventual argument of the Respondent that the Application is inadmissible because the period of time that had elapsed since the initial arrest of the Japanese vessel was too long. In our view, however, it is not the lapse of time in itself which makes this Application inadmissible. The Russian Federation shares the opinion of the honourable Judges, as well as of our respected opponents that Article 292 of the Convention does not indeed fix a particular time limit for the flag state of the detained vessel to present its claims concerning prompt release before the Tribunal. It is the stage of development of the events in this case which deprives an application for prompt release, in our opinion, from its object.

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The point is that by the judgment of 28 December 2006 the Petropavlovsk-Kamchatskii City Court decided that the Tomimaru should be confiscated. What is important is that, in contrast to the Juno Trader case, as I have already mentioned, it was a judicial and not an administrative decision. The judgment ordering confiscation was made in compliance with the provisions of Russian law. Such penalty for violations of fisheries laws and regulations in the Exclusive Economic Zone is provided not only in Russian legislation but also in many other national laws. Moreover, if we interpret paragraph 3, Article 73 of the Convention using the rule of contraries, such penalty is in full conformity with international law. Let me remind you that, according to the above-mentioned provision of the Convention, coastal state penalties for violations of fisheries laws and regulations in the Exclusive Economic Zone, in the absence of agreements to the contrary by the states concerned, may not include imprisonment or any other form of corporal punishment. In accordance with paragraph 1 of Article 30.1 of the Code of Administrative Offences of the Russian Federation, if an administrative matter has been considered by a magistrate or a judge of an equal standing, its decision or judgment can be appealed in the district court or in another court of equal standing. The owner of the Tomimaru exercised this procedural right. As a consequence, the decision of the Petropavlovsk-Kamchatskii City Court concerning the confiscation of the vessel was upheld on 24 January 2007 by the Kamchatka District Court. It is worth noting in this connection that, to our knowledge, the owner of the vessel appealed only against the decision on confiscation. While doing this, he or his attorneys had the possibility to contest the ruling of 19 December 2006, by which their petition to set a reasonable bond for the prompt release of the vessel was rejected. The attorneys designated by the owner of the Tomimaru did not, however, seize this opportunity and appealed only against the penalty imposed by the court judgment. The decision on confiscation was upheld and, pursuant to paragraph 3 of Article 31.1 of the Code of Administrative Offences of the Russian Federation, immediately entered into force. By an implementing Act, the Federal agency of the Russian Federation responsible for the management of Federal property in the Kamchatskii district on 9 April 2007 included the arrested vessel into the Federal Property Register as property of the Russian Federation. It is true that a complaint against the decision of the Kamchatka District Court was lodged before the Supreme Court of the Russian Federation. It should be emphasized, however, in this regard that this complaint was lodged in the framework of the supervisory review procedure, which in Russian procedural law is a kind of exceptional judicial review, while the normal procedure concludes with an appeal.

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The principal task of the supervisory procedure is to guarantee uniformity in the application of legal norms. This is, therefore, the first ground for accepting complaints lodged against judicial decisions, which have already entered into legal force. Secondly, decisions upheld in the course of an appeal can be annulled at a supervisory stage if they infringe human and civil rights and freedoms proclaimed by universally recognized principles and the norms of international law and international treaties of the Russian Federation. Lastly, such decisions can be annulled if the violate the rights and legitimate interests of an indefinite number of people or other public interests. The decision on the merits of the case has already entered into legal force and been executed, as I have mentioned. In the light of the above-mentioned clarifications, we are arguing that the case of the Tomimaru has reached such a stage of development that the prompt release procedure under Article 292 of the Convention is no longer relevant. Therefore, we are asking the distinguished Tribunal to exercise its judicial propriety and declare the application of Japan inadmissible. In case the Tribunal does not agree with our firm conviction about the inadmissibility of the case, the Russian Federation asks the Tribunal to declare that the Respondent has fully complied with its obligations under Article 73 of the Convention. Our arguments on this matter will be presented by our next speakers. Mr President, distinguished members of the Tribunal, honourable representatives of Japan, I would now like to make some comments on the statements of the Applicant this morning. The Applicant repeatedly draws the attention of the Tribunal to alleged flaws and inconsistencies in the Russian legislation. Having the privilege of standing today before the most eminent experts in the field of the law of the sea from different regions of the world, I would like to express my humble opinion that it would hardly be possible to find a perfect legal system. In our view, there is always room for improvement. Like any other country in the world, the Russian Federation works to improve its legislation. By the way, we certainly take into account the difficulties which our Japanese partners have in the field of release of vessels. Mr Komatsu certainly knows that we have discussed these issues with the Japanese authorities. It should be mentioned a propos this, that among many countries fishing in the Russian EEZ, it is only Japan that has problems with prompt release. Still, in our view, there is no doubt that the content of the Russian national legislation is not and cannot be the object of the present dispute. Mr President, unfortunately, during the hearings in both cases we have had to discuss on a number of occasions the issues of translation. I would like to address this issue with respect to the statements of the Applicant this morning. It is worth noting that while referring to a very important document in this case, namely the letter of 12 December from the Inter-District Prosecutor’s Office for

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Nature Protection in Kamchatka, which was setting the bond, Professor Lowe this morning used a document presented by the Respondent in Annex 4. I would certainly not deny that the language in this letter is not very elegant. Still, the same document is reproduced as Annex 36 to the Application, and this wording is translated there in a much simpler way. The document says: “The free use of the trawler Tomimaru will not be prevented by the Inter-District Prosecutor’s Office once the bond is paid to the deposit account”. Then the details of the account follow. In our view, it shows that the Applicant has always had a clear and correct understanding of the meaning of this letter as establishing the bond and providing the necessary bank requirements for its payment. Mr President, in his statement, the Applicant mentioned that the crew members of the vessel Tomimaru were under detention and were not allowed to leave the Russian Federation for Japan. This issue has not been raised in the submissions of Japan and we did not prepare a reply to it. Still, I hope I will be able to make some comments in this regard. First, it should be noted that all the crew members left Russia long ago. Thus, their release cannot be the object of an application under prompt release procedures. I would like to draw the attention of the honourable Tribunal to the letter of the Senior Counsellor of Justice of the Inter-District Prosecutor’s Office for Nature Protection in Kamchatka to the Consulate-General of Japan in Vladivostok, dated 1 December 2006 (Annex 5 of the Application). The fifth paragraph on page 2 of the letter says that all the investigation against the vessel Tomimaru and its crew has been completed. Moreover, the last paragraph on the same page of the letter says that the decision to let the members of the crew of the trawlers leave the Russian Federation can be adopted without delay whenever requested by the owner of the vessel. Furthermore, the Senior Counsellor of Justice of the Inter-District Prosecutor’s Office for Nature Protection in Kamchatka, by the letter dated 22 December 2006 (Annex 22 of the Application) informed the Consulate-General of Japan in Vladivostok that the competent Russian authorities have repeatedly notified the Consulate-General as well as the agents of the owners of the vessel that the crew could be allowed to leave the place as soon as the request from the ship owner is received. Still, no request has ever been received from the owner. Finally, as mentioned this morning by Japan, the crew, after all, was ordered to leave the vessel. In our view, this can hardly be called detention. As for the Master of the vessel, the next speaker from our delegation, Mr Yalovitskiy, will explain the situation. Having said that, I would like now to thank the honourable judges for the attention they have generously paid to my presentation and request you, Mr President, to give the floor to Mr Yalovitskiy, who will elaborate on the factual outline of the case.

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THE PRESIDENT: Thank you very much indeed, Mr Zagaynov. I give the floor to Mr Yalovitskiy. Let us wait to see if the interpreters are ready.

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MR YALOVITSKIY (Interpretation): Distinguished President, honourable Judges, esteemed members of the Japanese delegation: I am the Head of section in the Department of Legal Assistance in the main directorate for International Cooperation. This is the department belonging to the Prosecutor-General of the Russian Federation and I have the duty to resolve issues of legal assistance in criminal and administrative cases. With regard to the information provided by the esteemed Japanese delegation in its application concerning the circumstances of proceedings that have been instituted against the Master and the owner of the Tomimaru 53 before the domestic courts of the Russian Federation, let me draw your attention to the following circumstances. On 31 October 2006, an inspection group of the State Sea Inspection of the Northeast Border Coastguard Directorate of the Federal Security Service of the Russian Federation stopped and inspected a fishing vessel under the flag of Japan – the Tomimaru 53, whose owner was the Kanai Gyogyo Company, Japan. After analysis of the documents available on board the vessel, data of its daily ship records as well as data provided by the Russian Licensing Authority, it was established that the Tomimaru 53 vessel having a valid licence was harvesting in the Exclusive Economic Zone of the Russian Federation the following species of fish: pollack (1,163 tonnes) and herring (18 tonnes). The vessel had on board a catch of 614,286 tonnes of pollack and 6,379 tonnes of herring. Out of this catch, there were 387 tonnes of pollack and 6,315 tonnes of herring, and that was supported by the harvesting documentation and regular data of daily ship records. These data were also in other records in the Kamchatka authorities. During the preliminary inspection, the amount of product on board the ship corresponded to that recorded in the documents. However, taking into account that there was no possibility to examine all the vessel, we could not confirm the real amount of catch on board the ship during the preliminary inspections. In this connection, on 2 November 2006, another inspection was carried out. During the additional inspecting, an unrecorded catch was found of 5.5 tonnes, and there were 8.8 tonnes of raw fish. On 3 November 2006, in accordance with parts 1 and 2 of Article 2.6 of the Code on Administrative Offences of the Russian Federation, it was decided to institute administrative proceedings against the Master of the vessel, Mr Takagiva Matsuo. [Interruption in interpretation] This pronouncement was made on the basis of the Russian Code, Part 2, Article 2.6 of the Code of Administrative Offences. In accordance with Article 23.10 of the Code of Administrative Offences, administrative proceedings were charged to the State Sea Inspection of the Northeast Border Coastguard Directorate of the Federal Security Service of the Russian Federation. That is, there were administrative proceedings against the Master.

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At the same time, on 8 November 2006, in accordance with the same Articles as well as Article 2.10 of the Code of Administrative Offences of the Russian Federation, proceedings were initiated against the ship owner of the vessel; that is, with regard to the ship owner of Tomimaru 53, the Kanai Gyogyo Company. This is another case. This case was also referred to the Northeast Coastguard State Inspection. Following the administrative investigation of the offences committed by the Master, Mr Takagiva Matsuo, on 8 November 2006 a criminal case was started against him. It was the third case. That criminal case was initiated on the basis of the events provided for in paragraph 2, Article 253 of the Criminal Code of the Russian Federation, concerning the exploitation of natural resources in the territorial waters of the Russian Federation without legal permission, since the Master of the vessel did not have a valid Russian licence for the catch discovered on board the Tomimaru 53 and the vessel did not have Russia’s permission for that. On 9 November 2006, the experts of the Kamchatka Regional Chamber of Trade and Commerce carried out an exercise to establish the exact quality and quantity of the illegal catch. It was revealed that, without the permission of the Russian authorities, considerable amounts of fish such as halibut, bass, ray, cod, sole and greenling were fished. Moreover, the inspection discovered on board an illegal stock of processed walleye Pollock. In accordance with that finding, the damage caused to the biological resources of the Russian Federation amounted to 9,328,600 roubles, without taking into account the cost of illegally processed fish products. In the course of the investigation of this criminal case, the Master of the Tomimaru 53, Mr Takagiva Matsuo, was charged with crimes featured in two Articles of the Criminal Code of the Russian Federation: first, I have already mentioned, Article 253 of the Criminal Code; secondly, paragraph 2 of Article 201 of the same Criminal Code of the Russian Federation. These offences are classified as abuse of authority, which in this context means that he used his powers to obtain an illegal interest for himself or for other persons in the event that this resulted in considerable damage to the illegally protected interest of the society of the state. The punishment for this rather serious offence may include imprisonment of up to five years. Since the Master of the Tomimaru 53 fishing vessel had made an illegal catch of large amounts of fish that were not permitted for catch – halibut, bass, ray, cod, sole and greenling – and exceeded the allowable quota of walleye pollack, by causing considerable damage to the sea-living resource in the Exclusive Economic Zone of the Russian Federation, he committed an act detrimental to the interests of the Russian Federation. Mr President, distinguished members of the Tribunal, in today’s intervention the Agent of Japan referred to the fact that there was a lock on the Japanese Master’s door, implying that that was evidence of the Respondent’s non-compliance with Article 72(3) of the Convention. That does not correspond to the reality of the situation. What is the essence of it? The Master, who was the subject of an investigation by the criminal court, had provided to him by the Japanese party an interpreter and legal counsel, and he was very well informed about all the rights to which he was entitled whilst under investigation.

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In accordance with those rights fixed in the criminal proceedings, if the Master wanted to leave the territory of the port, he could have done so in accordance with the following procedure: together with his counsel, he could have applied to the investigator in charge of the criminal case, who had imposed the punishment of interdiction, to change that measure of restraint and choose a measure such as a bond. Such a bond relating to someone being investigated by the criminal court is provided for in Article 106 of the Criminal Code of the Russian Federation. The amount of such a bond is in no way related to the issue or amount of the caused damage. Had the bond been deposited, he could have left the port freely with only one obligation, namely to attend the court promptly, when he would have been invited to speak to the court. However, the Master never in fact exercised that legitimate right, although he did not have any vires from the Russian side, so in this case the bond was never provided for the Master. In this respect, all the claims of the Japanese party that the Master of the Tomimaru, Mr Takagiva Matsuo, was detained are baseless. I allow myself to continue with the presentation of the circumstances of the case. It follows that the Master of the Tomimaru 53 was charged with committing offensive acts that entailed a criminal and administrative responsibility. As a consequence of the situation surrounding the Tomimaru 53, the Russian party had undertaken the following measures to meet the requirements of Article 73(3) of the Convention of the United Nations. On 1 December 2006, the Consul General of Japan in Vladivostok was served a clarification in response to his application on 30 November 2006, which stated that the resolution of the issue of releasing the vessel and posting a reasonable bond was within the competence of the Kamchatka Inter-District Prosecutor’s Office for the Protection of the Environment. This was explained in a letter from the coastguard, which clarified for the Japanese party the proper procedure for the definition of the bond. On the same day, 1 December, a prosecutor of the Kamchatka Inter-District Prosecutor’s Office, responding to the application of the Consul General of Japan on the release of the Tomimaru 53, explained that this criminal case was under investigation and in the hands of the State Sea Inspection; this was also mentioned in the letter from the coastguard. The response from the Prosecutor’s Office clearly stated that the decision to free the vessel could be adopted only after the ship-owner, who is responsible for the illegal acts of the Master of the Tomimaru 53, had complied with two conditions: first, to present a claim to introduce a bond commensurate with the damage and, secondly, to make payment of the bond practically. On 8 December 2006, the ship-owner, Kanai Gyogyo, through the Kamchatka Inter-District Prosecutor’s Office, applied – and hence we can conclude that the answer was clearly understood by the Japanese party – for information about the amount of the bond, after which the vessel could be set free by the Russian

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authorities in accordance with Article 73 of the UN Convention on the Law of the Sea. That is contained in the appendix. Therefore, the company was prepared to pay the bond for the release of the ship established by the Russian party to the stipulated bank account in the shortest period of time. This means that the ship-owner asked the Prosecutor’s Office to specify the bank account and the amount of the bond that the company, according to the terms of the letter, was prepared to pay. I therefore draw the Tribunal’s attention to the fact that the company was prepared to pay that sum within the shortest period of time. The Russian party considers this letter to be a proper claim to allow the release of the Tomimaru 53 vessel in accordance with the UN Convention on the Law of the Sea after the bond had been posted. Moreover, this claim was presented to a properly authorized person from the Russian Federation. On 12 December 2006, the investigator of the Prosecutor’s Office who took the criminal case with regard to the Master of the Tomimaru 53 adopted the procedural decision, which is also attached to the material provided by the Japanese party and was presented to the Prosecutor’s Office. The topic was that the sum of the bond would be 8,800,000 roubles, and the account of the designated bank was specified for the transfer of the bond. As it is very important to emphasize each word, I will try to draw to the attention of the Tribunal and respected members of the Japanese delegation that in this paper and in the letter that was sent to the ship-owner, it was stated that after the bond had been paid, the Prosecutor’s Office would not prevent the free operation of the Tomimaru 53. What else was that, if not a proper announcement of the deed, in accordance with the UN Convention? We think that that is exactly what it is, and we hope that the distinguished court will take into consideration our point of view with regard to this paper. Again I use the terminology that was used by the Agent of the Japanese part. I would like to draw the Tribunal’s attention to the fact that this letter opened both of the so-called locked doors, that is, the so-called lock on the criminal case and the so-called lock on the administrative case with regard to the vessel, because, in accordance with the Russian legislation, the prosecutor is the authorized person who can order the State Sea Inspection of the Northeast Coastguard Directorate of the FSS to release the vessel. That means that the prosecutor’s decision removed those two limitations. In spite of all the clarifications provided to the Japanese party with regard to the procedure for the payment of the bond, the amount of the bond, the account number to which the money was to be transferred, the said money to cover the bond has never been received from the owner of the Japanese vessel. Instead of depositing the bond as established by the authorities of the Russian party, the ship owner on 14 December addressed the State Sea Inspection with an application asking them to establish a bond which had already been set in connection with the fact that by definition, on 15 December, the State Sea Inspection took all the materials and passed them to the criminal case, so it did not have powers to resolve that issue and it rejected the claim of the ship owner and the administrative case was passed to the court.

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On 28 December 2006 the Kamchatka City Court ordered that the vessel owner, Kanai Gyogyo Company, be pronounced guilty of committing the administrative offence fixed by Part II, Article 8.17 of the Code of Administrative Offences of the Russian Federation, in particular, violation of the rules of fishing operations for catching water biological living resources or the licence conditions for catching water biological living resources in the Exclusive Economic Zone of the Russian Federation. As the punishment for this offence, the court set the penalty in an amount equal to twice the cost of the water biological living resources which were the subject of the administrative violation, which totalled 2,865,149 roubles, plus confiscation of the Tomimaru vessel with all tools and equipment aboard the vessel at the time. This pronouncement of the Russian court according to Russian legislation was the subject of a complaint against this decision on 25 January 2007. The Kamchatka Court pronounced the original decision of the first instance in force and in full and did not satisfy the complaint. So the decision of the court to punish Kanai Gyogyo Company, the vessel owner, entered into force on 25 January 2007. On 7 February 2007 the Petropavlovsk Kamchatskii Bailiffs Department initiated enforcement proceedings under this judgment of the court, which were completed on 9 April 2007 with the transfer of the confiscated Tomimaru vessel to the Territorial Directorate of Federal Agency for Federal Property Management in the Kamchatka region. In accordance with the extract from the Federal Property Register of the Russian Federation, the Tomimaru 53 fishing vessel is the property of the Russian Federation, and its identification number has been mentioned by the previous speaker. That was the end of the administrative procedures against the company and the owner. Besides, on 15 May 2007 the Petropalovsk Kamchatskii City Court by its order condemned Japanese citizen Mr Takagiva Matsuo, former Master of the Tomimaru 53, as guilty of crimes provided for in Part 2, Article 253 and Part 2, Article 201 of the Russian Criminal Code. I have spoken about those Articles. He was fined 500,000 roubles. As you see, no punishment such as detention was pronounced against the Japanese Master. In the course of the judicial proceedings the civil claim was satisfied on paying of damages in the sum of 9,328,600 roubles. As of today the penalty has been made but the damages have not yet been covered. It should be noted that for the last four years around the coast of Kamchatka for violations similar to those made by Tomimaru 53 seven more Japanese fishing vessels were detained. However, the illegal activities of Japanese citizen Takagiva Matsuo inflicted the gravest damage to the interests of the Russian Federation. The Russian court was guided by these exact considerations in prescribing punishment. Taking into account all the above facts, the Russian side cannot agree at all with the submission of the Japanese side on violation by the Russian party of its obligations under Part 2, Article 73 of the UN Convention on the Law of the Sea as well as with the request to release the Tomimaru 53 vessel upon conditions established by the Tribunal.

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In pursuance of the provisions of Article 73 of the Convention, the Russian Federation, as a coastal state, in exercising its sovereign rights in the Exclusive Economic Zone, implemented those rights, up to and including arrest and criminal proceedings, which ensured the observance of the requirements of the Russian legislation adopted in full compliance with this Convention. As for the submission of the Japanese party on the application of the provisions of Article 292 of the Convention to release the Tomimaru 53 upon posting the bond, this argument, in our opinion, does not have any legal grounds. First, the allegations of the Japanese party concerning the fact that “the owner was ready and wishing to post the bond or other security to promptly release the vessel” as per paragraph 55 of Japan’s counter memorandum, such a possibility as follows from the above-mentioned fact was available to the vessel owner from 12 December 2006; however, he has not used it. Second, at present the owner of the Tomimaru 53 is the Russian Federation. Consequently, the former ship owner, the Kanai Gyogyo Company, in no way can quote that they are prepared to post a bond or wishing to do that as, contrary to the claim of the Japanese party, this does not correspond to reality. Consequently, Article 292 of the Convention cannot be applied in this case as the right to apply to the Tribunal can be made only with regard to a detained vessel, not a confiscated vessel. Today’s statement of the Japanese party that the allegedly internal measures of the Russian Federation on confiscation of a vessel Tomimaru 53 are not acceptable to it and it continues to consider this vessel as its own property in our opinion is an intervention into the exercise by the Russian Federation of its sovereign rights, which are directly foreseen by the provisions of the UN Convention on the Law of the Sea. If so, the Russian party is of the opinion that Application of the Japanese party to the Tribunal on the Law of the Sea with regard the release of the Tomimaru 53 vessel cannot be set aside either in form or in essence. Thank you for your attention. That is the end of my intervention. THE PRESIDENT: Thank you, Mr Yalovitskiy, for your statement. Thank you in particular for speaking slowly. It came through in translation quite well. We now turn to Professor Golitsyn. Could you please continue? PROFESSOR GOLITSYN: Thank you, Mr President. With your permission, I would like to divide my presentation into two parts. I will deliver the first part and if the Tribunal will then declare a break, I will continue with the concluding part. THE PRESIDENT: Thank you, yes. PROFESSOR GOLITSYN: Mr President, distinguished Judges of the Tribunal, it is a great privilege and honour for me to appear before this Tribunal and to address legal issues arising in the Tomimaru case. As in the Hoshinmaru case, I would like to start with the requests that are addressed to the Tribunal.

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The Applicant in its Application requests the Tribunal to do three things by way of judgment: first, to declare that the Tribunal has jurisdiction under Article 292 of the Convention to hear the application concerning the detention of the vessel and the crew of the 53rd Tomimaru in breach of the Respondent’s obligations under Article 73(2) of the Convention; secondly, to declare that the application is admissible, that the allegations of the Applicant are well founded and that the Respondent has breached its obligations under Article 73(2) of the Convention; and finally, to order the Respondent to release the vessel and the crew of the Tomimaru upon such terms and conditions as the Tribunal shall consider reasonable. The Respondent for its part requests the Tribunal to decline to make these orders and to order first, that the Application of Japan is inadmissible and secondly, alternatively, that the allegations of the Applicant are not well founded and that the Russian Federation has fulfilled its obligations under paragraph 2 of the Article 73 of the United Nations Convention on the Law of the Sea. In my observations I will try to address in a comprehensive way legal issues arising in the light of these requests. First, I would like to address the issue of the setting of the bond, because it appears that there is some confusion on the Applicant’s side with regard to the understanding of this issue. In two paragraphs of its Application the Applicant claims that the owner of the 53rd Tomimaru has at all times been ready and wiling to post a bond or other security in order to secure the release of the vessel provided that the bond or other security were fixed and that the amount and conditions for their payment are reasonable, and the authorities of the coastal state permit the actual release of the vessel. It is also claimed in the Application that no bond or other security has been set and the vessel has not been released. The above allegations do not correspond to the facts, which I would like now to bring to the attention of the Tribunal. Paragraph 2 of Article 73 of the Convention states that a reasonable bond or other security shall be set by a coastal state for the prompt release of the arrested vessel. So paragraph 2 of Article 73 of the Convention basically states that the coastal state has an obligation to set the bond, and it is assumed that it will be done in accordance with the applicable procedures of the coastal state. In the Tomimaru case all the necessary steps stipulated in paragraph 2 of Article 73 have been taken by the Russian Federation as the coastal state to meet this requirement. As noted in paragraph 69 of the Statement in Response, the Respondent first, identified the proper authority for the setting of the bond; second, set the bond; third, provided the owner with precise and clear information with regard to the amount of the bond and the account details; and fourth, assured the owner that the arrested

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vessel would be released upon the payment of the bond. These steps of the Respondent are described in paragraphs 14, 15 and 34-36 of the Statement in Response. Let me now address each one of these steps to illustrate the actions taken by the Respondent. First, the identification of the proper authority for setting of the bond. As noted in paragraph 12 of the Statement in Response, on 1 December 2006 the Inter-District Prosecutor’s Office for Nature Protection in Kamchatka informed the Consulate-General of Japan in Vladivostok that it was waiting for the due request for setting of a bond. A special emphasis was placed on the question of release of the vessel. The Applicant was assured that the decision to release the seized vessel would be made upon the payment of a bond. On 8 December 2006, as is also pointed out in paragraph 14 of the Statement in Response, in reply to an inquiry by the owner of the vessel, the Northern Border Coastguard Directorate for the Federal Security Service of the Russian Federation on 14 December 2006 confirmed to the Consulate-General of Japan in Vladivostok that the proper body to determine the bond in the case of the 53rd Tomimaru was the Inter-District Prosecutor’s Office for Nature Protection in Kamchatka. Coming to the next step, the actual setting of the bond, with reference to the actual setting of the bond, I would like to draw the attention of the distinguished judges to paragraph 15 of the Statement in Response, which stipulates that on 12 December 2006 the Inter-District Prosecutor’s Office for Nature Protection in Kamchatka duly set a reasonable bond. The amount of the bond was set at the level of the overall damages to the marine living resources in the Russian Exclusive Economic Zone equivalent to 8,800,000 roubles. The next step is information brought to the attention of the owner with regard to the bond. As pointed out in paragraphs 15 and 36 of the Statement in Response, following the setting of the bond, the owner of the vessel was immediately informed about it and was provided with detailed instructions regarding the bank account to which the payment should be made. The final step is the assurances given to the owner that the arrested vessel will be promptly released upon the payment of the bond. The competent Russian authorities, upon setting of the bond, also immediately informed the owner of the arrested vessel that the vessel will be promptly released upon payment of the bond. Conclusions: It follows from the above explanations that the Applicant’s claim that the bond set by the Russian authorities is not a bond for the purposes of paragraph 2 of Article 73 of the Convention must be rejected.

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The fragmentation of the notion of bond, as suggested by the Applicant, would not be consistent with the purposes and nature of the bond, and this does not coincide with the actual proceedings carried out by the Respondent. In the light of the foregoing, the Respondent would like to reiterate once again in very clear terms that a reasonable bond for the release of the Tomimaru was set by the competent authorities of the Russian Federation on 12 December 2006 for the purposes of prompt release of the Tomimaru vessel upon payment of the bond, as provided for in paragraph 2 of Article 73 of the Convention. As a reasonable bond has been set by the Respondent, the Tribunal should, in the view of the Respondent, exercise judicial propriety and order that the application concerning the prompt release of the 53rd Tomimaru is inadmissible. I would now like to address the issue of the interrelation of various provisions of Article 73 of the Convention. Distinguished judges, I would like now to address the issue which is sometimes forgotten or does not receive proper attention when prompt release proceedings under Article 73 are involved. Article 73 of the Convention was very carefully drafted to establish a proper balance between various interests. Although this Article contains provisions protecting the interests of flag states through prompt release procedures, this Article cannot and should not be understood as implying that the coastal state is otherwise restricted in exercising its sovereign rights within the Exclusive Economic Zone. According to paragraph 1 of Article 73, the coastal state may, in exercise of its sovereign rights to explore, exploit, conserve and manage the marine living resources in the Exclusive Economic Zone, take such measures (including boarding, inspection, arrest and judicial proceedings) as may be necessary to ensure compliance with the laws and regulations adopted in conformity with the Convention. In the Statement in Response, it is emphasized in this respect that it follows from paragraph 1 of Article 73 of the Convention that in exercise of its sovereign rights within the Exclusive Economic Zone, the coastal state has full authority to take all the necessary measures, including the institution of judicial proceedings, to ensure full compliance with its conservation and management measures. Paragraphs 2, 3 and 4 of Article 73 of the Convention contain certain conditions that should be met and observed by the coastal state in situations where foreign vessels are detained or arrested, but these paragraphs are also drafted on the assumption that the owner of the vessel will meet its obligations and fully cooperate with the competent authorities of the coastal state. I bring this consideration to the attention of the distinguished judges because in the Tomimaru case the owner of the vessel has never paid the bond, which was set on 12 December 2006 by the proper Russian authorities. Therefore, the owner did not comply with its obligations under paragraph 2 of Article 73 of the Convention.

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In paragraph 67 of the Statement in Response, it is emphasized that payment by the owner of the vessel of a bond or other security set by the coastal authorities constitutes an obligation with which the owner of the vessel must duly comply. Prompt compliance by the owner with this obligation is the factor that triggers prompt release of the arrested vessel. So, Article 73 of the Convention should be read and understood in its entirety because of the very careful balance of responsibilities and obligations established by it. Paragraph 2 of Article 73 of the Convention concerning prompt release of the arrested vessel cannot be read in isolation from paragraph 1 of this Article concerning the exercise by the coastal state of its sovereign rights in the Exclusive Economic Zone. If the owner of a vessel does not comply with its obligations under paragraph 2 of Article 73 of the Convention by not paying the bond, the coastal state does have full authority to proceed with all the necessary measures to ensure compliance with its laws and regulations, which are aimed at ensuring conservation and proper management of the marine living resources in the Exclusive Economic Zone of the coastal state. The latter also includes the institution of appropriate judicial proceedings, which will be conducted in accordance with the applicable national laws of the coastal state. In the Tomimaru case, the competent Russian authorities instituted the necessary judicial proceedings to ensure compliance with its laws and regulations, and they did it in full conformity with the relevant provisions of the Law of the Sea Convention in exercise of the sovereign rights of the Russian Federation in the Exclusive Economic Zone. I would like to touch on the issue of why the application is inadmissible because the vessel in the Tomimaru case was confiscated pursuant to a decision of the Russian court. I would like now to address the issue of the inadmissibility of the application because of the confiscation of the Tomimaru vessel following the completion of the appropriate judicial proceedings of the Russian Federation. The arguments that I would like to bring to the attention of the Tribunal in this regard should be understood in the context of other observations that I have already made regarding full compliance by the Respondent with its obligations under paragraph 2 of Article 73 of the Convention. First, I would like to address the issue of the applicable national judicial proceedings in the Tomimaru case. The case against the owner of the Tomimaru vessel was submitted in December 2006 to the Petropavlovsk-Kamchatskii City Court in accordance with the applicable proceedings.

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On 28 December 2006, the Petropavlovsk-Kamchatskii City Court decided that the vessel should be confiscated and a fine of 2,865,149.5 roubles should be paid by the owner. During the proceedings of the court that led to the above judgment, the attorney representing the owner: pleaded guilty; asked the court to impose a fine equal to double damages without confiscation of the vessel because the offence had been committed by the owner for the first time; and, informed the court that the owner was ready to pay all fines and to cover the costs of the court’s proceedings in this case. On 6 January 2007, the owner of the vessel submitted an appeal against the aforementioned judgment to the Kamchatka District Court. The latter upheld the decision of the Petropavlovsk-Kamchatskii City Court on 24 January 2007. In the light of the clarifications provided by the Supreme Court of the Russian Federation on 20 August 2003, which are referred to in paragraph 23 of the Statement in Response, the decision of the Kamchatka District Court entered into force immediately upon its delivery; in other words, on 24 January 2007. The decision was subject to enforcement from that date. Following the entry into force of the decision of the Petropavlovsk-Kamchatskii City Court, the Federal agency responsible for the management of Federal property included the fishing vessel 53rd Tomimaru, confiscated in accordance with the aforementioned decision of the court, into the Federal Property Register as property of the Russian Federation. It follows from the above that in the Tomimaru case we deal with the following situation: the appropriate court proceedings were completed; the respective judgment, which included confiscation of the vessel, was rendered and entered into force; and the confiscated property, the fishing vessel Tomimaru, was included in the Federal Property Register as property of the Russian Federation. I turn to the legal implications of the judgment. In its arguments on the legal implications of the judgement, which includes confiscation of the vessel, the Respondent extensively refers to the views expressed on this subject by the French Government in its communication of 28 March 2001, forwarded to the Registrar of the Tribunal by the Director of Legal Affairs of the Ministry of Foreign Affairs of France in connection with an application for prompt release submitted on behalf of Belize to the Tribunal with regard to the vessel Grand Prince. The respondent fully shares these views. I would like to highlight some of the main elements of the arguments presented by the French Government. The reference to them in full is contained in paragraph 42 of the Statement in Response.

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The French Government argues that:

“when the internal judicial proceedings have reached their conclusion and, in particular, when they have led to the pronouncement of a sentence of confiscation of the vessel, any possible resort to Article 292 procedure loses its reason for being. In such a case, the application for prompt release is moot. As from the time when the national court has pronounced confiscation of the vessel as the applicable sanction, the introduction of prompt release proceedings before the International Tribunal for the Law of the Sea is not only no longer possible but indeed is not even conceivable.”

The French Government further argues that:

“a confiscation declared by a national court as a principal or secondary penalty has as its effect authoritatively and definitively to transfer to the State the property confiscated. The owner of the vessel loses his title by virtue of the judicial decision and, if he seeks to recover his rights in the property, the remedies open to him can no longer be pursued within a proceeding for prompt release, since he can no longer be considered as the holder of the title to the vessel.”

The French Government concludes presentation of its position on this subject by stating that it flows from paragraph 3 of Article 292 that:

“The …Tribunal shall deal … with the application for release and shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew … In any penal proceedings instituted against the captain of a foreign fishing vessel for violation of the laws and regulations of the coastal State, the determination of the applicable penalty and the imposition of that penalty are an integral part of what one calls ‘the merits’; i.e. the very substance of the case submitted to a national court.”

The Respondent fully shares this position and strongly believes that, once the proceedings before the national court are completed and the judgment, which includes the confiscation of the arrested vessel, is rendered by the national court, the application for the prompt release proceedings under Article 292 of the Convention would be equivalent to the interference by the Tribunal into the conduct and result of internal judicial proceedings of the coastal state concerned. What situation do we have in the Tomimaru case? In the Tomimaru case, the Russian court rendered its judgment, which included confiscation of the Tomimaru vessel. This judgment was upheld by the upper court fully in accordance with Russian procedural law and the principles of due process. The judgment, thus, has entered into legal force and the property, the Tomimaru vessel, was confiscated pursuant to this judgment and was entered into the Federal Property Register as property of the Russian Federation.

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In the light of the foregoing, the Respondent believes that the case brought by the Applicant before the Tribunal must be declared inadmissible. Now I would like to turn to the issue of why the Applicant requests that the Tribunal should order the release of the vessel upon such conditions and terms as the Tribunal considers reasonable. I refer to subparagraph 1(c) of the application in the Tomimaru case. This request is similar to the one in subparagraph 1 (c) in the Hoshinmaru case that was submitted by the Applicant. In subparagraph 1(c) the Applicant requests the Tribunal to order the Respondent to release the vessel Tomimaru upon such terms and conditions that the Tribunal shall consider reasonable. As I explained during the hearings in the Hoshinmaru case, the Respondent is of the view that this request is formulated in a way that goes beyond the scope of what is envisaged in Article 292 of the Convention because the Applicant requests the Tribunal to exercise functions that are not attributed to it under Article 292 of the Convention. I do not believe that it is necessary to repeat all the arguments presented on this subject in the Hoshinmaru case because they are equally valid in the Tomimaru case. I would therefore ask the distinguished judges to take the arguments presented by me on this subject in the Hoshinmaru case also into account when they consider the Tomimaru case. The Tribunal has always determined under Article 292 of the Convention not the terms and conditions, as requested by the Applicant, but a reasonable bond or other security, upon payment of which the arrested vessel shall be promptly released. For the reasons explained in connection with the request contained in subparagraph 1(c) of the application, the Respondent requests the Tribunal to declare the application inadmissible May I stop here and continue after the break, Mr President? THE PRESIDENT: Thank you, Professor Golitsyn. I believe that is appropriate. We will adjourn for 20 minutes. (Short break) THE PRESIDENT: Professor Golitsyn, would you please continue? PROFESSOR GOLITSYN: Mr President, distinguished judges, I would now like to address the issue of the establishment of the jurisdiction of the Tribunal, as presented in sub-paragraph 1(a) of Japan’s Application.

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This paragraph in the Tomimaru Application is identical to a similar sub-paragraph in the Hoshinmaru Application. Consequently, the arguments presented by me in the Hoshinmaru case are relevant to the Tomimaru case as well. However, given the importance that we attach to this subject, I find it necessary to repeat them. It is obvious that the first action that the Tribunal needs to take when it receives an application for the prompt release of a vessel is to satisfy itself that it has jurisdiction under Article 292 of the Convention to adjudicate on the case. If one looks at the request that is addressed by the Applicant in this regard to the Tribunal, one will find that the Tribunal is requested to declare its jurisdiction under Article 292 on the assumption that the Respondent is in breach of its obligations under Paragraph 2 of Article 73 of the Convention. We believe that in establishing its jurisdiction to adjudicate on the case, the Tribunal cannot and should not imply in advance that the allegations made by the Applicant regarding the non-compliance by the Respondent with the provisions of paragraph 2 of Article 73 of the Convention are well grounded and therefore should be accepted. Therefore, the Respondent cannot agree, as stated in paragraph 32 of its Statement in Response in the Tomimaru case, with what is requested by the Applicant in sub-paragraph 1(a) of its Application in that case. I would now like to make some comments with regard to observations made this morning. Quite a few observations were made by the Applicant this morning that are questionable and require comments. In my presentation I will comment only on those that are more or less of a legal nature. I would like to start with comments on the statement that the owner of the vessel up until now has continued to make requests to set a reasonable bond for the release of the arrested vessel. It is our understanding that the owner has been trying through the applicable judicial proceedings to reverse a court’s judgment regarding the confiscation of the vessel. However, the owner has not been making requests for the setting of a new bond. Such requests have been made by the Japanese authorities but not by the owner of the vessel. The second observation that I would like to make relates to the remarks that were repeated several times this morning, the essence of which is that since the Supreme Court of the Russian Federation is currently involved in this matter, the decision of the Petropavlovsk-Kamchatskii City Court has not yet come into force, and that therefore the property for this vessel has not been transferred to the Russian Federation. We are at least surprised by these remarks, because the legal situation was quite clearly explained in the Statement in Response. In paragraphs 22 and 23 of this Statement, it is explained that an appeal procedure was exhausted when the judgment of the Petropavlovsk-Kamchatskii City Court of 28 December 2006 was upheld by the Kamchatka District Court on 24 January 2007. As clarified in paragraphs 23 and 26 of the Statement in Response, once the appeal procedure was exhausted and the decision of the Petropavlovsk-Kamchatskii City Court came

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into force, the Federal Agency responsible for the management of the federal property by an implementing Act of 9 April 2007 included the fishing vessel Tomimaru, confiscated in accordance with the decision of the court, in the Federal Property Register as property of the Russian Federation. The matter now before the Supreme Court of the Russian Federation is not an appeal with regard to the judgment that has already come into force. It is an objection lodged by the owner of the vessel in accordance with the supervisory review procedure exercised by the Supreme Court – a procedure that is completely different from the appeal procedure. Consequently, the vessel is currently registered in the Federal Property Register as property of the Russian Federation. It was alleged this morning that since the Tomimaru has not been excluded from the Japanese Flag Register, it cannot become the property of the Russian Federation until this situation is changed, because the Tomimaru cannot be re-flagged. In our view, that is a very strange assumption, which may be interpreted to mean that Japan can influence the decisions of Russian courts or prevent the implementation of their judgments. Japan definitely does not have this authority. Besides, this assumption is based on an idea that the vessel is supposed to be re-flagged. However, as property of the Russian Federation, the Tomimaru vessel can be used for various purposes. For example, it can be placed as an exhibit in a museum of fishing vessels involved in illegal activities; it can be sold to a new owner who would change it to a seafood restaurant or make it a part of an amusement park; or it can be determined by the Federal Agency responsible for the management of federal property that this vessel is in such poor condition that it is nothing more than a piece of scrap metal and therefore should be completely demolished. It was also claimed this morning that even if the owner had paid the bond established on 12 December 2006, the vessel would never have been released by the Russian authorities. In the Hoshinmaru case we were criticized the Applicant’s Counsel for trying to invent a hypothetical situation and we were reminded that in the proceedings before this Tribunal we should deal only with the real facts. It is now our turn to remind the Applicant that the Tribunal does not deal with hypothetical situations but with the real facts. In this case, the fact is that on 12 December 2006 the Inter-District Prosecutor’s Office for Nature Protection in Kamchatka duly set a reasonable bond in accordance with the authority delegated to it. It is a fact that the owner has never contested this bond and has never paid it. These are the facts, not a hypothetical situation, that should be presented to the Tribunal by the parties. It was alleged this morning that there is some confusion between administrative and criminal proceedings of the Russian Federation that sometimes operate in parallel and that it is difficult to determine authority that is responsible for the setting of bonds. We were told that this is a situation with two locks and that in the Tomimaru case there was a key to only one lock, and that the owner, despite all efforts, failed to find a key to another lock. We would like to remind the Applicant that it is for the owner of the locks to know exactly what key would open them. In connection with

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this comment, we therefore wonder why our Statement in Response is being read by the Applicant selectively. In paragraph 12 of the Statement in Response, it is explained that on 1 December 2006 the Japanese authorities were informed by the Inter-District Prosecutor’s Office for Nature Protection in Kamchatka that it was waiting for a due request for setting a bond. Special emphasis was placed on the question of release of the vessel, and the authorities of the Applicant were informed that a decision to release the seized vessel would be made upon payment of the bond. In paragraph 14 of the Statement, it is further clarified that in response to an enquiry from the owner of the vessel, the latter was informed that the proper body responsible for the determination of a bond in the case of Tomimaru was the Inter-District Prosecutor’s Office for Nature Protection in Kamchatka. As everyone knows, I hope by now, on 12 December 2006 the Inter-District Prosecutor’s Office for Nature Protection in Kamchatka duly set a reasonable bond in the amount of 8,800,000 roubles and informed the owner that the free operation of the vessel would be allowed on payment of the bond. We wonder why, after all these clarifications, one still has doubts about proper authority to establish a reasonable bond in the Tomimaru case. The Applicant expressed doubts as to whether the bond set on 12 December 2006 was a proper bond, a bond for the purposes of paragraph 2 of Article 73 of the Convention. The respective letter informing the Japanese side about setting of a bond clearly stated (in brackets) that it was not a fine for ecological damages but a bond, in calculation of which ecological damage was one of the considerations. If the Japanese authorities had certain doubts about the nature and the purpose of the bond set on 12 December 2006, they should have consulted the competent Russian authorities and asked for clarifications. That has never been done. The fact of the matter is that whether the Japanese side considers the bond established by competent Russian authorities as a bond set at unreasonably low level it is a reasonable bond established by the Russian authorities. No other reasonable bond has been set in this case by the competent Russian authorities under paragraph 2 of Article 73 of the convention. In this regard it is worth reminding the Tribunal that the competent Russian authorities evaluate each situation on a case by case basis, and that the procedures discussed at length at the Joint Commission established under the 1984 Agreement have become operational only recently. In statements by the Applicant this morning reference was made to a petition by the owner to the Petropavlovsk-Kamchatski City Court asking this Court to set a reasonable bond. This petition was rejected by the Court as noted in paragraph 17 of the Statement in Response. It is probably worth commenting in this connection on actions undertaken by the owner of this vessel in the Tomimaru case. This reminds me of my younger years when I studied English and was advised on difference between the words “confused” and “confusing”. It appears that in this case we are dealing with a confused owner of the vessel who constantly finds itself in confusing situations. Following the establishment of the reasonable bond by the

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competent Russian authorities on 12 December 2006, the owner for reasons that are diff to und, decided to ask the City Court to establish another bond. When the owner was rebuffed by that Court, its attorney, during the proceedings before the Court that led to a decision which included the confiscation of the vessel, claimed that it has some kind of understanding with the Russian law enforcement authorities regarding the setting of a bond and assessment of the damage. One may wonder whether the owner was actually trying to reach an arrangement regarding release of the vessel outside normal proceedings, which is not a legal way of managing such situations. This may explain why the owner has never officially challenged the bond and has never paid it. However, we understand that this is mere speculation on our part and, as advised by the Applicant, we are not supposed to bring hypothetical situations to the attention of the Tribunal, which deals with facts and only facts. On several occasions in the course of oral hearings this morning the Applicant questioned the current procedures in the Russian Federation used for the purposes of paragraph 2 of Article 73 of the Convention. We were advised by the Applicant to refine these procedures to ensure more effective implementation of our obligations under paragraph 2 of Article 73 of the Convention. In response to these observations I would like to reiterate what I said yesterday during the proceedings in the Hoshinmaru case, namely, that lack of understanding of the applicable Russian procedures, which is evident by what was stated by the Applicant during the oral proceedings this morning, could not serve as a justification for this kind of statement. The Russian Federation does have clearly defined procedures that allow it to meet all the requirements of paragraph 2 of Article 73 of the Convention and these procedures have been effectively applied without any complaints over the years. In my concluding remarks I would like to reiterate some of the main points of my presentation, which are the following. In pursuance of its responsibilities under paragraph 2 of Article 73 of the Convention, the competent authorities of the Respondent, namely the Inter-Agency Prosecutor for Nature Protection of Kamchatka, set a bond, provided the owner with the necessary details regarding the payment of the bond and informed the owner that they would release the vessel upon posting of the bond. Article 73 of the Convention should be read in its entirety because its paragraphs are closely linked and inter-related to each other, and therefore paragraphs 2, 3 and 4 should be read in conjunction with what is stated in paragraph 1 of this Article concerning the exercise by the coastal state of its sovereign rights in the exclusive economic zone. As the owner of the 53rd Tomimaru vessel, who has never contested the amount of the bond, has not promptly paid the bond, the necessary judicial proceedings were instituted in December 2006 before the Petropavlovsk-Kamchatski City Court.

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Following the entry into force of the decision of the Petropavlovsk-Kamchatski City Court, the Federal Agency responsible for the management of Federal Property included the fishing vessel 53

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rd Tomimaru, confiscated in accordance with the aforementioned decision of the Court, in the Federal Property Register as property of the Russian Federation. In conclusion, I would like to state that factual information presented by the Respondent, as well as legal analyses of the provisions of Article 73 of the Convention, unequivocally confirm that, contrary to what is alleged by the Applicant, the Respondent has fully complied with its obligations under paragraph 2 of Article 73 of the Convention and that as a result, the case should be declared by the Tribunal inadmissible. Thank you for your kind attention. THE PRESIDENT: Thank you very much indeed, Professor Golitsyn. That brings us to the end of this sitting. As agreed, the sitting will be resumed on Monday 23 July at 10 o’clock, when the representatives of the parties will present their second round of submissions. The Tribunal’s sitting is now closed. (The hearing adjourned at 5.05 p.m.)

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